Allahabad High Court
Smt.Sohbatti vs State Of U.P. on 24 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 410
Bench: Sunita Agarwal, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reportable RESERVED Case :- CRIMINAL APPEAL No. - 1435 of 1997 Appellant :- Smt. Sohbatti Respondent :- State of U.P. Counsel for Appellant :- I.K.Chaturvedi,Hanuman Deen Verma,S. B. Singh,S. K. Pandey Counsel for Respondent :- A.G.A. Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Deepak Verma,J.
1. Heard Sri Surendra Bahadur Singh learned Advocate on behalf of the appellant, Sri L.D. Rajbhar and Sri Prem Shankar Mishra learned Additional Government Advocates on behalf of the State and perused the record.
2. The present appeal is directed against the judgment and order dated 28.7.1997 in Sessions Trial No. 185 of 1996 (State vs. Smt. Sohbatti Devi), arising out of Case Crime No. 07 of 1996, under Section 302/201 I.P.C., Police Station- Bakhira, District- Basti by which the appellant Smt. Sohbatti wife of Sri Ram Nath, resident of Village Bardad, Police Station Bakhira, District Basti has been convicted for offence under Section 302 I.P.C. and sentenced for life imprisonment and for the offence under Section 201 I.P.C. convicted and sentenced for five years. Both the sentences are directed to run concurrently.
The events in the prosecution story go on as under:-
3. A missing report dated 13.1.1996 was lodged by Smt. Kumari Devi wife of Phoolbadan, resident of Village Bardad, Police Station Bakhira, District Basti to state that her son Rajendra aged about 5 years had gone missing around 6:00 PM on 12.1.1996. She alongwith other villagers had searched for the child but they could not find him.
4. A first information report dated 16.1.1996 scribed by Rajdev Yadav son of Ramkewal Yadav was lodged by Smt. Kumari Devi wife of Phoolbadan to state that his missing son was found dead and his dead body was recovered after much efforts from a pond behind her house at around 10:00 AM on 16.1.1996 itself. The body was recovered with the help of villagers named as Janardan son of Ram Bachan, Ram Chandra son of Shiv Baran, Pradhan Sundar @ Chunnur son of Ghisai and Up-pradhan Jayram son of Manohar. She raised suspicion that her sister-in-law Sohbatti wife of Ram Nath had murdered her son Rajendra and concealed his dead body in the pond. The motive for murder as narrated therein was to grab all landed property of the first informant. It is stated that whenever there was altercation between the first informant and her sister-in-law, the accused used to threaten that she would kill both the first informant and her son. The report further states that body of the child (her son) after recovery had been kept besides the pond. The said written report was exhibited as Exhibit 'Ka-1'. The first information report was registered as Chik report (Exhibit Ka-2) at around 02:00 PM on 16.1.1996 under Sections 302/201 IPC. The date and time of the incident as reported therein is 12.1.1996 around 6:00 PM. The search memo dated 16.1.1996 (Exhibit Ka-14) indicates that search was conducted for the accused/appellant but no incriminating article was found nor the accused/appellant was found. 'Exhibit Ka-15' is the memo of receipt of the torch belonging to the witness Phoolmati who stated that she had witnessed the accused with the child (deceased) alive on the day of missing in the light of the torch. The postmortem was conducted on 17.1.2996 at around 3:00 PM. The Doctor had opined the estimated time of murder about three days back.
5. The findings on external examination of the dead body are:-
Average build body of the child about five years. Body covered with dry mud and sand particle. Wrinkles are present on skin at both palm and sole & foot, face cyanosed, Eyes congested, Bloody froth coming from both the nostrils, mud & sand under nails of hand and foot absent rigor mortis passed off from all the four limbs.
Ante mortem injuries:-
(1) Abrasion 1x0.5 cm on bridge of nose 0.5 cm below root of nose, horizontal;
(2) Abrasion 1x0.5 cm on bridge of nose obliquely present 1.0 cm below injury no. 1;
(3) Multiple abrasion in area of 6x1.5 cm on left side of face 2c.m. front of left ear tragus.
(4) Abrasion 2.5 cmx0.5cm on lower lip both sides;
(5) abraded contusion 5x2.5 cm in front of neck 1.5 cm above sternal notch in mid & both sides.
The conditions of internal organs indicated in the report shows the cause of death due to asphyxia as a result of strangulation. The postmortem examination of the deceased child, thus, ruled out possibility of death due to drowning. The homicidal death of the child is proved from the report.
6. As the events go on, the inquest was conducted on 16.1.1996, started around 15:30 hours and ended at 17:10 hours. The clothes found on the dead body were a half shirt, one kurta over it and girdle of black thread (करधनी) tied in the waist.
The police had submitted charge sheet against the appellant after completion of the investigation. The charges framed against the accused were of committing murder and concealing the dead body. The accused denied both the charges and demanded trial. The accused was committed to the Sessions Court for trial.
7. The prosecution had examined 13 witnesses. Amongst them, PW-1, PW-2, PW-3, PW-6, PW-7, PW-9 and PW-10 are witnesses of facts.
8. PW-4 is the constable Prem Shankar Tripathi who was posted in Thana Bakhira at that point of time. He proved that the police reached the spot of the incident on 16.1.1996 at around 4:15 PM and when they reached, dead body was outside the pond (गड़ही). After inquest was completed at around 4:00 PM, he moved from the place of incident with the dead body to the Mortuary. The entry in GD of police lines was made on 16.1.1996 at 11:00 PM and body was handed over to the Doctor in the District Hospital on 17.1.1996 at around 10:00 AM. The postmortem was conducted at around 3:30 PM and till that time, the dead body was intact in the sealed cover and no one had touched the same.
9. PW-5 is the Constable/Moharrir working in the Police Station Bakhira who prepared Chik report and GD entry Rapat No. 19 (time around 14:00 hours) on 16.1.1996 which were exhibited as 'Exhibits Ka-2 and Ka-3'. He states that special report of the case was sent through Rapat No. 20 time at 14:30 hours on 16.1.1996 by another Constable. With regard to the missing report dated 13.1.1996, this witness states that the said report was given by the first informant in writing at the Police Station and was entered in GD Rapat No. 35 at 19:05 hours. He, however, did not prove the GD entry of the said report as it was not brought by him. He states that after the written report of missing dated 13.1.1996, no one was arrested by the police though the Station House Officer visited the place of incident. At the time of lodging of the first information report dated 16.1.1996, Sri Manju Singh Yadav, the S.I. was present. He moved to the place of occurrence soon after the report was entered in the G.D. He denied any suggestion of report being a result of deliberation by the police. S.I. Manju Singh Yadav, the Investigating Officer who had been examined as PW-11. PW-12 is the Investigating Officer who on transfer of PW-11 had completed the investigation and submitted the charge sheet in the Court.
10. PW-13 is the Doctor who conducted postmortem of the dead body. The Doctor in his deposition proved that he received the dead body on 17.1.1996 and conducted postmortem. He proved the injuries indicated in the report. He states that the dead body was brought to the hospital by two constables. As per his findings, during strangulation, both the neck and nose of the child were pressed. To explain the condition of the dead body found near the pond, he stated that no water was found in the lungs that means the child was first murdered and then thrown in the water. There were no traces of sand and mud in his nails, which means that the child was not thrown alive in the water or it was not a case of death due to drowning. Estimated time of occurrence as per his report was around mid-night of 13/14.1.1996. He denied suggestion of death being caused in the night of 12.1.1996 or that it was a result of accident by drowning. He further clarified that semisolid food was present in the stomach which could be identified by him as Rice, Dal, Potato, Gobhi. As the food was undigested, in all probability, death had been caused within 2 to 2½ hours of the deceased child consuming food. On a suggesting given by the defence, only this was stated that there was possibility of occurrence of injury no. 3 and injury no. 4 had the child fallen on a rough ground. However, injury no. 4 could only occur because of pressing of mouth. Injury no. 5 came due to strangulation either by hand or a round stick. The Doctor states very categorically that had the child fallen in the pond (गड़ही), the injuries nos. 3, 4 and 5 could not have come.
From the statement of the postmortem Doctor, it is, thus, proved that the death of the child was caused due to strangulation and not by drowning. Someone had killed him and then threw his body in the pond. Amongst the formal witnesses, only PW-11 remains who is an important witness, his deposition would be seen at the appropriate stage.
11. We would next proceed to appreciate the evidence of witnesses of facts:-
PW-2 Smt. Kumari Devi is the first informant, the mother of the deceased child and sister-in-law of the accused/appellant Smt. Sohbatti. In her deposition, she states that her husband Phoolbadan was three brothers. One of his brother was residing in Ahemadabad. Phoolbadan had gone missing 5 to 6 years ago and his whereabouts were not known. Ram Nath, husband of Sohbatti (the appellant) is her brother-in-law. She had two children, one son Rajendra who was aged about five years and a daughter of about 10 to 11 years old. After her husband had gone missing, she started living in her Maika (parental home). Her agricultural land was being managed by Smt. Sohbatti. One month before the incident, she came back to the village and asked her land back from Sohbatti. She was then threatened by Sohbatti that his son would be killed. Her son Rajendra had gone missing at around 6:00 PM on 12.1.1996. When all efforts to fetch him went in vain, she reported the matter on the next day, i.e. on 13.1.1996 in the Police Station. On 16.1.1996, during day time, the dead body of her son was recovered from the pond behind her house in the presence of Sundar Pradhan, Jayram, Janardan and Ramchandra. After the dead body was taken out from the pond, the first information report scribed by Rajdev was lodged in the Police Station. She proved the written report bearing her thumb impression in the writing of Rajdev (Exhibited as Exhibit 'Ka-1'). The clothes of deceased were identified by her and exhibited. She stated that the appellant had murdered her son to grab her landed property. In the cross-examination, PW-2 states that after her husband had gone missing, she stayed in her 'Maika' for about 5-6 years. Thereafter, she returned to the village (her matrimonial home) few months back. Her daughter stayed back with her maternal grand-parents. In the Village, she started living in the house of Ram Nath husband of Sohbatti. She did not have cordial relations with Sohbatti and earlier had to go back to her 'Maika' because Sohbatti was fighting with her. She did not have cordial relationship with Ram Nath either. On a suggestion given by the defence that she was residing with Ram Nath as husband and wife, she states that after Sohbatti was lodged in jail, she started cooking food for him and looks after his children as no one else was there to do that. She then admitted that for about two to three months, she was residing with Ram Nath as husband and wife but then stated that since Ram Nath did not want to leave his wife, she would not reside with him anymore.
Then she goes on to say that 2-3 days before her son had gone missing, she had an altercation with Sohbatti. It was not because of Ram Nath but because of land. At that time, Ram Nath was present and he also supported Sohbatti. On the fateful day, when the child had gone missing, Ram Nath was not at home and only Sohbatti was present. Ram Nath had gone elsewhere.
12. About the scribe of the written report Rajdev Yadav son of Ramkewal Yadav, she states that she did not know him earlier and she could know him only while searching for her missing child. She went to search her son with the villagers who were collected at a common place namely Chamanganj Chauraha. All of them came to her house and she told everyone loudly that Sohbatti had killed her son. They then took her to the Police Station to lodge the missing report. She states that she told the police that Sohbatti had kidnapped her child but the police did not record this fact in the missing report. The police did not reach the Village on the next day of the missing report. After the dead body was found, she went to the Police Station, lodged the report written by Rajdev with her thumb impression; the police, thereafter, came to the Village with them. She then states that after her child had gone missing and before the dead body could be found, Smt. Phoolmati wife of Ram Saware and Smt. Gujrati Devi wife of Kamal Lohar though met her in the night and told that they heard the cries of her son shouting "mai mai", but they did not tell her that Sobhatti had killed the child.
13. She then states that Rajdev PW-3 told her that Sohbatti confessed her guilt and that from the next day of the incident itself, Sohbatti was pleading everyone in the village with whom she had good relations to save her. PW-2 denied having knowledge of whether Sohbatti was at home or not when the dead body was recovered from the pond. She then states that the police took Smt. Sohbatti to the Police Station from the pond itself where the dead body was recovered. Ram Saware was also taken to the Police Station for interrogation.
14. PW-3 Rajdev is the scribe of the first information report. He states that after four days of the child gone missing, the dead body was found in the pond behind the house of the first informant and the appellant. Pradhan and Up-pradhan and other villagers were present when the dead body was taken out from the pond at around 11:00 AM. The report of the incident was written by him on the dictation of Kumari (PW-2). He further states itself that one day after the recovery of the dead body, at around 10:00 AM, Sohbatti (the appellant) met him at Chamanganj Bazar and confessed that she had killed the child and pleaded him to save her.
This witness states that his house was at a distance of half kms. from the house of the first informant (PW-2) in another purva. He knew both Kumari (PW-2) and Sohbatti (the appellant) prior to the incident. During altercation between them two-three times prior to the incident he went to pacify. He then said that these ladies must have fought two-three times in one year, last being about 2-4 months back. Kumari, Sohbatti and wife of Shivpujan, another brother (three ladies of the house) were not going out to work but they used to remain in their houses.
He denied having knowledge that Kumari was living with Ram Nath. But says that Kumari was living in the village around one year prior to the incident. Ram Nath, husband of Sohbatti was a labour and worked outside the village. On the date of incident, Ram Nath was not in the village and had gone to visit some relative one or two days prior to the incident.
15. He further states that after the child had gone missing, for about three-four days, he continuously went to the house of Kumari. On the next day of missing, PW-2 Kumari came to his house at around 7-8 PM to inform that her son was missing and also told him that Sohbatti was behind all that, but no report was written by him about missing of the child. He did not go to the Police Station to lodge the missing report. Rather on the next day of missing, he went to the house of Kumari, stayed there for about half hour and then went back to his house around 10:00 PM. He refused having any knowledge of the missing report lodged by Kumari (PW-2). He states that he did not have any information of police reaching the spot after the missing report was lodged.
16. He further states that on the next day of missing when he went to the house of Kumari Devi, Sohbatti and Phoolmati met him but he did not meet Gujrati. He made enquiry from them about the missing child. Both of them expressed ignorance. Sohbatti met him consecutively on the second, third, fourth and fifth day after missing of the child. He then states that after the dead body was found, Sohbatti confessed her guilt and and pleaded him to save her. The witness explains that he used to mediate on small issues between villagers; and that was why Sohbatti pleaded him to help her. But Sohbatti did not visit his house. He did not meet Ram Nath during the days when the child had gone missing and the dead body was found. He met Sohbatti at her home after the dead body was found. The day when dead body was recovered, Sohbatti was at her home. On the second day, Sohbatti met him near the Nandaur Marg Chauraha, around 1 km. away from her house.
17. He then states that when he reached the house of Kumari at around 9-10 AM, body was still in the water and was being taken out. They proceeded to the Police Station when the dead body was still seen in the pond. Police came in the afternoon and then body was taken out from the water by two young men. The report was written by him on the dictates of Kumari before the police came and body was seen. He states that Daroga Ji (the SHO) interrogated Sohbatti but deny having any knowledge that she was taken to the Police Station. Thereafter, the SHO called him, Pradhan, and other respectable persons of the Village to the Police Station. He was not interrogated by the police on the day of recovery of the dead body rather they were called to the Police Station two-three days, thereafter. When police made inquiries, he told about the confession by Sohbatti. He then states that the news of the incident had travelled in the entire Block and everyone knew that Sohbatti had murdered the child.
He denied having personal acquaintance with the SHO Manju Singh Yadav. He states that all the BDC members and elected Gram Pradhan were called to the Police Station by the SHO.
18. PW-1 was the Gram Pradhan who states that the dead body of child Rajendra was found behind the house of the appellant and the first informant after four days when he had gone missing. They could not find the child despite best efforts. Kumari, the first informant (PW-2) was living in her 'Maika' after her husband had gone missing and Sohbatti was ploughing her fields. One month prior to the incident, Kumari came back to the village and asked for her land. Altercation ensued on refusal by Sohbatti as she wanted to grab the land. On 16.1.1996, Janardan came to him in the morning and told that Sohbatti sent him to convey the message that ^^fd iz/kku ls dgks dh yk'k [kkstok;s yk'k rkykc esa feysxh^^. Janardan and Ram Nath had entered the pond (Pokhar) and then the dead body was recovered from the North-East corner of the pond, behind the house of the first informant and the appellant. After the dead body was taken out, the report was lodged by Kumari, police came and inquest was done. PW-1 is the inquest witness. He goes on to say that when he got message of Sohbatti through Janardan, he went to the house of Sohbatti, she also told him to look for the dead body in the pond behind her house.
19. In cross-examination, this witness states that after Phoolbadan (husband of Kumari), his wife and children had left the village, his landed property was shared by both his brothers Shivpujan and Ram Nath. Ram Nath and Shivpujan both had divided the share of the Phoolbadan amongst them and were ploughing his field as Kumari went to her 'Maika'. One month prior to the incident, Kumari came back to the village and earlier also she used to come to the village. When he was elected as Gram Pradhan, share of Phoolbadan was returned to Kumari by his intervention. Shivpujan gave it willingly. He categorically states that four months prior to the incident, share of land of Phoolbadan was handed over to Kumari.
He denied the suggestion of any enmity of the first informant or her husband Phoolbadan with any of the villagers. He states that on the day when the child gone missing, he was in the Police Station for his own work. He went to the house of Kumari hearing noise in the night at around 08:00 PM. He got to know there that Ram Nath went to his in-laws house around 4:00 PM. Sohbatti was in the village but he did not meet her. Kumari was crying, house of Sohbatti was open and her one son was playing near the door, another younger child of Sohbatti was sleeping on the Cot in 'Osara'. PW-1 states that he went to the Police Station on the next day alongwith other villagers to lodge the missing report.
20. He then states that on the same day, on his instructions a net was thrown in the pond at around 9:00 PM. Kumari told him then also that Sohbatti was the perpetrator of the crime. They all, however, were busy in fetching the missing child but no one looked for him in the house, Bhusoula, Dhari or Charani of Sohbatti. No inquiry was made from the neighbours Phoolmati and Gujrati. Wife of Shivpujan was in the post delivery stage and hence she was not questioned. No one was there in the house of Shivpujan apart from his wife.
On 13.1.1996, a report was scribed by Rajdev Yadav at the police station when and he alongwith Kumari and Rajdev went to the Police Station to lodge the missing report. But, the said report was not taken by the S.H.O. rather he told by PW-11 to make good efforts to search the child. He states that Kumari then told the S.H.O. that Sohbatti had done all that but the police did not come to the village.
21. He then says that after coming back, they searched for the dead body in the pond. 20 persons had entered in the pond but dead body could not be found. He also interrogated Sohbatti but she denied. Sohbatti did not help them in finding the child, she rather tried to flee from the village but was caught thrice. After she was threatened and scolded, she sent the above said message through Janardan to PW-1. He denied use of any physical force or doing any 'maar-peet' with Sohbatti but told that Sohbatti was threatened that she would be lodged in jail. On the third day, after receipt of message of Sohbatti, the dead body was recovered.
PW-1 then deposed that Sohbatti also told him that Ramsaware was roaming near the pond during the night and when she looked at him, he hid inside his house. Sohbatti told him that had efforts be made that day, body would be found in the pond. PW-1 has denied any suggestion of enmity between Kumari and Ramsaware, but admits that on 14.1.1996 police had taken both Ramasware and Sohbatti to the Police Station for interrogation. He states that statement of Phoolmati and Gujarati were recorded in the village in front of many villagers. He denied that he went to the Police Station, after the dead body was taken by the police. He denied that they were called by the SHO to the Police Station after recovery of the dead body.
22. There are two more witnesses of fact, PW-9 Ram Briksha and PW-10 Jayram, both residents of the same village. PW-9 Ram Briksha denied that he had seen Sohbatti (the appellant) with the child on 16.1.1996 at around 9:00 AM near her house or she made any confession to him.
P.W.10 Jayram states that Sohbatti did not meet him in the morning nor she gave any message to him to search the dead body behind her house. Both PW-9 and PW-10 were cross-examined by the A.D.G.C., but nothing could be elicited from their statements.
23. Two more witnesses to assert the theory of last seen, PW-6 and PW-7, have been examined. Both had been declared hostile. PW-6 Phoolmati states that she did not witness Sohbatti strangulating the child in the torch light with Gujrati (PW-7). She only heard the cries of the child. In the cross-examination by A.D.G.C., she states that she did not tell the police that she last witnessed the accused with the child alive and how it was written in her statement was not known to her.
PW-7 Smt. Gujrati also states that she had no knowledge about the incident. She did not witness Sohbatti strangulating the child in the torch light.
Thus, the witnesses of last seen PW-6 and 7 and two more witnesses PW-9 and PW-10 of extra judicial confession did not support the prosecution case.
24. Only three prosecution witnesses of the fact, thus, remained who are PW-1 (the Gram Pradhan), PW-2 (the first informant) and PW-3 (the scribe of the first information report). Relevant part of their statements in the examination-in-chief and in cross-examination have been extracted above in detail to assess their testimony. The deposition of PW-11, the Investigating Officer is also to be appreciated at this stage.
25. PW-11, S.I. Manju Singh Yadav stated that Chik FIR (Exhibit Ka-2) was signed by him as he was present in the Police Station on 16.1.1996 at around 14:00 hours. The missing report dated 13.1.1996 given by Kumari Devi was endorsed with her thumb impression and proved as 'Exhibit Ka-4'. The entry of the said report had been made in the General Diary Rapat No. 35 dated 13.1.1996 in the handwriting and signature of Kanhaiya Prasad which PW-11 had identified. He states that after missing report was lodged, on 14.1.1996, he went to the Village in search of the missing child. The Entry in G.D. Rapat No. 10, Time 07:45 dated 14.1.1996 was stated to be proof of the said fact.
26. He further stated in the examination-in-chief that the investigation was commenced by him after registration of the first information report. He went to the place of incident after recording statement of Kumari Devi in the Police Station itself. Dead Body was taken in police custody and inquest was prepared in the handwriting of S.I. Ravindra Chandra Bhadauriya on his dictation. All the reports were carrying his signature and proved as 'Exhibit Ka-6 to Ka-12'. After completion of formalities, body was sent for the postmortem. The site map of the place of incident was drawn by him as Exhibit 'Ka-13'. Thereafter, he recorded statements of Sundar @ Chunnur (PW-1), Janardan and Jayram. The search of the accused was conducted and the search memo was prepared in his own handwriting bearing his signature exhibited as Exhibit 'Ka-14'.
27. He further states that on 17.1.1996, statements of Phoolmati (PW-6) and Gujrati (PW-7), Rajdev Yadav (PW-3), Ram Briksha Chaudhary (PW-9) were recorded and torch of Phoolmati was checked and memo 'Ka-15' was prepared to note that it was found in working condition. The statements of all four witnesses have been filed in the court in his own handwriting and signature entered in the CD, as 'Exhibits 'Ka-16' to 'Ka-18'. On 20.1.1996, Smt. Sohbatti was arrested and her statement was recorded. The said fact had been noted in GD Rapat No. 24 dated 20.1.1996 at 18:15 hours in the handwriting of Head Constable Ram Badai and signed by him, which was exhibited as Exhibit 'Ka-20'. After arrest of the accused, another site plan was prepared on the pointing of the accused which bears his signature. He proves the same to be correct according to the spot, which is exhibited as Exhibit Ka-21.
PW-11 denied suggestion of any acquaintance with Gram Pradhan (PW-1) or Rajdev (PW-3).
28. He further states in the cross-examination that he did not know as to why during lodging of the missing report, name of Smt. Sohbatti was not disclosed by Kumari Devi. The special report of missing was also sent on 13.1.1996 itself as entered in GD No. 35, Time 17:05 hours. He goes on to say that thereafter, he went to the village in the night on 13.1.1996, but as no offence was made out from the missing report, no first information report was registered. On 13.1.1996, when he reached the village around 11:00 PM, he made search for the child but did not meet anyone in the neighbourhood. The Gram Pradhan, Jayram and others were not there and there was no reason for him to look for the dead body in the pond. Thereafter, he went to other places under his jurisdiction and returned to the Police Station only on 14.1.1996. He further states that he might have told the Gram Pradhan to search for the child as he told that to everyone. Intimation to other police stations were also given on remote sets; requisition was also sent for "Kashti Talash" (search through boat) which was issued.
29. He further states that on 16.1.1996, Kumari Devi came to the Police Station at around 14:00 hours (2:00 PM) alongwith Rajdev Yadav and Sundar @ Chunnur and her statement was recorded in the Police Station but statements of Sundar @ Chunnur and Jayram were not recorded in the Police Station. Kumari Devi intimated him that she came back to the village around six months prior to the incident alongwith his five year old child. The motive for murder, according to her, was to grab her land. After registration of the first information report and recording of statement of the first informant (PW-2), he proceeded to the place of incident and reached at the place at around 3:15 PM. When he reached, he found the dead body besides the pond as it was already taken out from the water. The accused did not meet him nor she was present in her house. He searched for the accused and then prepared the search memo. Gujrati and Phoolmati were not interrogated. Janardhan and Ramchandra were interrogated. The statement of Sundar Pradhan was taken but he did not disclose the name of Ramsaware being one of the suspects. PW-11 completely denied arrest of Ramsaware for interrogation. He did not meet husband of accused Smt. Sohbatti either prior to or after the incident. He also did not meet the accused/appellant between the date of missing of the child till recovery of his dead body. The appellant was arrested only on 20.1.1996 and then for the first time, he met her.
PW-11 categorically denied that he took the accused and Ramsaware both to the Police Station on 16.1.1996 for interrogation and denied that they were detained in the Police Station uptil 20.1.1996 and thereafter, Ramsaware was released and Smt. Sohbatti was illegally challaned. He denied that statement of Gujrati, Phoolmati was wrongly recorded by him at the instance of Rajdev in order to save Ramsaware or statement of Sohbatti was recorded in order to give false colour to the case.
30. At this stage, the evidence of Prem Shankar Tripathi PW-4 is also to be appreciated. He states that he took the dead body to the District Hospital for postmortem from the place of incident. In cross-examination, he states that he was present in the Police Station Bakhira on 16.1.1996. The first informant had reached the Police Station at around 12:00 noon. He did not remember whether S.H.O. was present in the Police Station at that point of time. He, however, states that he alongwith S.I. Ravindra Chandra Bhadauriya and S.H.O. left the Police Station at 3:30 Hours to go to the place of incident. They reached there within one and a half hour. The body was outside the pond and when for the first time he looked at the body, it was being sealed as all the paper work was done by Constable Bhadauriya. The dead body was, thereafter, brought to the Police Station and was taken to the Mortuary by him. It was handed over to the Doctor on 17.1.1996. He denied that the paper work was done by the Investigating Officer while sitting in the Police Station and not at the place of crime.
31. The accused/appellant Smt. Sohbatti in her statement under Section 313 Cr.P.C denied that Kumari was residing in her 'Maika' after her husband had gone missing. She also denied that there was any dispute between them regarding share of Kumari in the landed property rather she stated that Kumari was living in the village and managing her own property. She denied any information of lodging of the missing report on 13.1.1996. She, however, admits that the dead body of child Rajendra was found from the 'Garhi' at the back side of their house after seven days of missing at around 10:00 AM. She denied herself keeping the dead body concealed for those days. She also specifically denied the versions of witnesses Phoolmati, Jayram, Gujrati, Ram Briksha recorded under Section 161 Cr.P.C. She denied G.D. entry no. 20 regarding her arrest and stated that it was a forged paper. Her answer to question no. '16' is relevant to be noted hereunder:-
"iz'u&16%& D;k vkidks vkSj dqN dguk gSA mRrj& njksxk th xkao ij vk;s xMgs ls yk'k fudyok;s o mlh le; mls o esjs xkao ds jke lokjs dks Fkkus ij idM+dj ys x;sA eq>s 4&5 fnu rd Fkkus esa jksds j[ksA rFkk esjk xyr C;ku ntZ dj ds jke lokjs dks NksM fn;k rFkk esjk pkykuu dj fn;kA eS osdlwj gw¡A esjs nks NksVs cPps gSA c;ku lqudj rlnhd fd;k"
32. It can, thus, be seen that the accused/appellant categorically stated that she and Ramsaware both were detained in the Police Station for 4 to 5 days. She then states that the police had falsely implicated her and she is innocent. She produced defence witnesses DW-1 and DW-2. DW-1 Gorakhnath is a police officer who brought both GD dated 13.1.1996 and 16.1.1996 of the Police Station Bakhira. In GD entry dated 13.1.1996 at Rapat No. 35, Time 19:05 hours, though there was an entry of the missing report of Kumari Devi but there was no entry of movement of S.I. Manju Singh Yadav for the village-in-question, whereas, the entry of his movement dated 13.1.1996 at Rapat No. 41, Time 21:45 hours was for "Dabish Abhiyukt" but the name of Village had not been mentioned there. He was not cross-examined by the prosecution.
DW-2 S.C. Ehsaan Ullah, C.O. Peshi Khalilabad states that he was posted as C.O. Peshi, Khalilabad and proved the photo copy of Special report of Case Crime No. 07 of 1996 under Sections 302/201 IPC as Exhibit 'Kha-1'.
33. Having a threadbare discussion of the statements of the prosecution witnesses and defence of the appellant in her statement under Section 313 Cr.P.C. as well as the evidence of defence witnesses, the circumstances of the case as culled out are under:-
(i) There is no evidence of last seen. Both the witnesses of last seen produced by the prosecution had turned hostile. From a reading of their entire testimony, it cannot be ascertained that they had last seen the accused/appellant with the deceased child alive.
(ii) No one had seen the deceased child alive before or near the time of his missing. The first informant though lodged a missing report stating that she did not see her child since around 6:00 PM on 12.1.1996 but there is complete silence in her statement as to where and when was she last with her child on 12.1.1996. She did not name the appellant in the missing report being even a suspect. The first informant and the appellant being members of one family were living in adjacent houses. Semisolid food was found in the stomach of the deceased child and as per the description in the postmortem examination, the food inside the stomach could be identified being full meal comprising of Dal, Rice and vegetables. As per the opinion of the Doctor based on the condition of food in the stomach, the time gap between taking of food and death of child could be two to three hours. There is nothing in the statement of the first informant who is mother of the child as to when she had last fed her child or someone else in the house had given him food on the fateful day, i.e. 12.1.1996.
(iii) The appellant stayed in her house for all those seven days till she was arrested by the police after the dead body was found. She was neither the suspect nor was interrogated at any point of time by the police prior to 16.1.1996, before the dead body of the child was found in the pond.
(iv) Only circumstance put forward by the prosecution to suspect the appellant is that she used to quarrel with the first informant over a piece of land belonging to the husband of the first informant. This is stated to be the motive to commit the crime. If we examine the alleged motive in the facts and circumstances placed before us, we find that the first informant though states that the accused appellant was ploughing her field but nothing more has been brought on record. PW-1 who was Gram Pradhan, on the other hand, stated that the dispute pertaining to the disputed land was settled with his intervention and the piece of land was already handed over to the first informant. The motive to commit the crime, therefore, did not appear to be present at the relevant point of time.
Altercations between two ladies, who are sister-in-law living in the adjacent houses is the most common circumstance. Occasional altercations on one or other occasion, cannot be taken as a sound reason to assign motive for committing such a heinous offence. The name of the appellant appeared in the first information report (lodged after four days) after the dead body was recovered from the pond.
(v) The statement of PW-1 and PW-3 of extra judicial confession made by the appellant to them is also not convincing. There are material contradictions/embellishments and improvements in their depositions. It cannot be said that they were having a relationship of trust and confidence with the accused/appellant which may have prompted her to disclose her guilt to them. On the other hand, from the statement of the Gram Pradhan PW-1, it appears that the confession of the appellant, if any, was a result of coercion and threat given to her that if she did not accept her guilt, she would be lodged in jail. The confession of the appellant before the Gram Pradhan (PW-1) and Rajdev (PW-3), therefore, cannot be said to be voluntary.
(vi) In the present case, the prosecution story rests squarely on circumstantial evidence. It has been consistently laid down by the Apex Court that the inference of guilt, in a case of circumstantial evidence, can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances.
It was laid down in Bhagat Ram vs. State Of Punjab1 that when the case depends upon the conclusion drawn from the circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
The principles for dealing with circumstantial evidence discussed by the Apex Court in Bodhraj Alias Bodha and others vs. State of Jammu and Kashmir2 are as under:-
"11. We may also make a reference to a decision of this Court in C Chenga Reddy and Ors. v. State of A,P,, [1996] 10 SCC 193, wherein it has been observed thus:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn would be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P. and Ors.. AIR (1990) SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests;
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly esablished;
(2) those circumstances. should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances. taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any. other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl.L.J.l 104, it was pointed out that great case must be taken in evaluating circumstantially evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. h was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book "Wills" Circumstantial Evidence" (Chapter VI ) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability, (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits, (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC 343, wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature. the circumstances from which the conclusion of guilt is to be drawn the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words. there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
17. A reference may be made to other decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused. that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should excludee very possible hypothesis except the one to be proved;
(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Same principles have been reiterated in Babu vs. State of Kerala3 reads as under:-
"22. In Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430, this Court after considering large number of its earlier judgments observed as follows:
'15....This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, AIR 1982 SC 1157)".
23. In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or should' and not `may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
A similar view has been re-iterated by this Court in State of U.P. v. Satish, (2005) 3 SCC 114; and Pawan v. State of Uttaranchal (2009) 15 SCC 259.
24. In Subramaniam v. State of Tamil Nadu, (2009) 14 SCC 415, while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh v. State of Rajasthan (2009) 12 SCC 603)."
(vii) In the instant case, the prosecution tried to prove its story from three circumstances; (i) firstly the theory of last seen by two witnesses (PW-6 and PW-7) who had turned hostile; (ii) Secondly, the extra judicial confession of the accused/appellant before PW-1, Gram Pradhan and PW-3, Rajdev (who was also scribe of the first information report); (iii) Thirdly, the motive to commit the crime as stated was the dispute pertaining to a piece of land belonging to the husband of the first informant.
(viii) As noted above, the prosecution has not been able to prove the evidence of last seen. We may also note that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The burden is on the prosecution to prove by positive evidence that the deceased and accused were seen alive together. In absence of any positive evidence in the instant case, it cannot be concluded that the accused and deceased were together or were last seen alive together before the child had gone missing. It would be hazardous to come to a conclusion of guilt of the appellant in absence of any such evidence. [Reference Ramreddy Rajesh Khanna Reddy and another vs. State of A.P.4 and Rameshbhai Chandubhai Rathod vs. State of Gujarat5]
(ix) As far as motive is concerned, its importance in cases of circumstantial evidence cannot be ignored. The motive may be considered as a circumstance which is relevant for assessing the evidence. The absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. However, if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. [State of Uttar Pradesh vs. Kishanpal and others6, Pannayar vs. State of Tamil Nadu by Inspector of Police7 and Babu vs. State of Kerala3] In the instant case, the motive though narrated by the prosecution but is not found to be an existing circumstance from the deposition of the prosecution witnesses.
As noted above, the Gram Pradhan PW-1 states that the dispute relating to the land belonging to the husband of the first informant had been settled with his intervention prior to the commission of the crime. The motive in the instant case as stated in the deposition of the first informant (PW-2), therefore, seems to have been obliterated at the time of commission of the crime. It, therefore, becomes a very weak evidence. In absence of any other positive evidence to corroborate, the motive cannot be taken as the sole circumstance, based on the statement of the first informant, to hold that it is the appellant who could only be the perpetrator of the crime as she used to quarrel with the first informant over a piece of land which was earlier in her possession.
(x) The last circumstance is the extra judicial confession of the appellant in the narration of PW-1 and PW-3, the prosecution witnesses. As far as the law relating to extra judicial confession, it is held in Sahadevan and another vs. State of Tamil Nadu8 that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence.
In Balwinder Singh vs. State of Punjab9 and Kavita vs. State of Tamilnadu10, it is held that an extra-judicial confession by its very nature is rather a weak piece of evidence and requires appreciation with the great deal of care and caution. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made.
While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra judicial confession, the Apex Court in State of Rajasthan vs. Raja Ram11 stated the following principle:-
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Court further expressed the view that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.xxxxxxxxxxxxxxx"
In Aloke Nath Dutta and others vs. State of West Bengal12, it was held that the reliance placed by the Court on extra judicial confession in absence of other corroborating material would be unjustified:-
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration.
xxxxxxxxxxxxxx
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
While analyzing the principles for accepting the admissibility of extra judicial confession, it was noted in Sahadevan8 as under:-
"15.6. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B. 2008 (15) SCC 449]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :
"53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165]."
It was further held as under:-
"16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
The Principles
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
Section 24 of the Indian Evidence Act, 1872 states as under:-
"24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,2 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
In the instant case, extra judicial confession has been made to two persons who both were in authority being Gram Pradhan and a BDC member in the Village. We may not conclude that they had any kind of ill will or motive of attributing an untruthful statement to the accused but it cannot be ruled out that the confession by the accused/appellant may have been made as a result of inducement, threat or promise and it cannot be said to be voluntarily.
34. From a conspectus of the circumstances put forth by the prosecution, in the light of the analysis of the legal position pertaining to each circumstance brought before us, we find that the prosecution has utterly failed to bring the relevant material, i.e. those circumstances which definitely and unerringly point towards guilt of the accused. All the circumstances, taken cumulatively, do not form a chain so complete that there is no escape from the conclusion that in all probabilities, like a prudent man, the crime was committed by the accused and no one else. The circumstantial evidence brought forward by the prosecution are not such which would form a complete chain and are incapable of explanation of any other hypothesis than that of the guilt of the accused. In the broken chain of circumstances, we do not find any clinching evidence against the appellant to hold her guilty.
35. We also think it pertinent to note that it was a murder or death of the child which was homicidal in nature. The dead body was found in a pond which was a public pond accessible to one and all in the village. It may said that it was easily accessible to the appellant being situated behind her house and taking advantage of the location, she might have succeeded in committing the crime. But we cannot ignore that the first informant was also residing in the adjacent house and no material circumstance could be brought before us by any of the prosecution witness which would cast any burden on the appellant to explain the homicidal death of the child. The possibility of someone else committing the crime cannot be ruled out.
36. There is one more circumstance which goes in favour of the accused. In her statement under Section 313 Cr.P.C., the appellant categorically stated that she was detained in the Police Station for about 3-4 days alongwith one Ram Saware, a neighbour for interrogation. Ram Saware was, however, released and the appellant was implicated. The arrest of the appellant was shown to have been made on 20.1.1996, though her name had figured in the first information report and she was present in her house as per the prosecution witnesses. There is no explanation by the Investigating Officer (PW-11) as to why the arrest of the appellant was delayed for four days. The search Memo Exhibit Ka '14' indicates that search was conducted in the absence of the accused but no incriminating material was found. The statement of the appellant that she was detained in the Police Station for four days without any arrest, therefore, appears to be true and the possibility of her false implication on the pressure of the influential persons of the village like Gram Pradhan and BDC member (PW-1 and PW-3) at the behest of the first informant (PW-2), can be ruled out.
37. There are other circumstances for which prosecution has not given any explanation:-
(i) Nothing can be culled out from the investigation as to where was the dead body for 3-4 days and why was it not searched thoroughly near the house of the appellant when she was a prime suspect form the beginning as per the deposition of PW-2 (the first informant);
(ii) The Gram Pradhan PW-1 states that he conducted search for the dead body of the child in the pond on the day when missing report was lodged and a net was thrown in the pond and also 20 persons had entered in the pond to search for the dead body;
(iii) From the site plan, it appears that the Pond is a large water body accessible to everyone in the village.
(iv) The medical report of the dead body also indicates that it was not immersed in the water for a long time.
(v) Rigor mortis had passed off from all the four limbs and there was no indication of rotting (सड़न) in the medical report;
(vi) Ramnath, the husband of the appellant, is completely missing from the whole scene though as per the deposition of the first informant, he was present during altercation between the appellant and the first informant about 2-3 days prior to the date of missing of the child.
(vii) It seems surprising that the police did not even interrogate Ramnath, husband of the appellant who was also a resident of the same house during the entire investigation.
(viii) Who had last seen the child alive, when and where, is completely missing from the prosecution evidence.
38. The role of Investigating Officer in the present scenario also becomes questionable. It is evident that the Investigating Officer did not make any sincere effort to find out the truth of the story narrated by the witnesses of facts. It appears that the appellant was implicated in a zeal to solve the crime by the Investigating Officer in a hurried manner. The trial court has also committed the same error while holding the appellant guilty of murder of the child.
39. The present is not a case where putting all circumstances together, the Court can reach at the conclusion that "no one else than the appellant could be the perpetrator of the crime". Another question which comes in the mind of the Court is "if not the appellant then who else could be the perpetrator of the crime?". We are not finding answer to the question either way, in negative or in affirmative. We are also afraid to give answer to the said question in absence of any cogent material before us. For mere reason that we are not finding the real culprit, we cannot draw the inference that the appellant must have committed the crime.
In support of our above view, we would be benefited by the observations of the Apex Court in Shankarlal Gyarasilal Dixit vs. State Of Maharashtra13, where the Apex Court was in the same position as we are today.
Relevant paragraph is quoted hereunder:-
"32. The High Court, it must be said, has referred to the recent decisions of this Court in Mahmood v. State of U.P. [1976 (1) SCC 542] and Chandmal v. State of Rajasthan [1976 (1) SCC 621] in which the rule governing cases of circumstantial evidence is reiterated. But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the "shadow of doubt". In the first place, 'shadow of doubt', even in cases which depend on direct evidence is shadow of "reasonable" doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt.
33. Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely ? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case. the dead body of a tender girl, raped and throttled, was found in the appellant's house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellant's name was not mentioned to the police until quite late. These are questions for the Court to consider."
40. For the reasons as aforesaid, we find that the impugned judgment is not sustainable in the eyes of law and is liable to be set aside.
41. Accordingly, the judgment and order dated 28.7.1997 passed by the Special Judge, Basti in Sessions Trial No. 185 of 1996 (State vs. Smt. Sohbatti Devi), arising out of Case Crime No. 07 of 1996, Police Station- Bakhira, District-Basti, convicting and sentencing the accused-appellant Smt. Sohbatti, under Section 302/201 I.P.C. is set aside and the accused-appellant is acquitted of all the offences/charges.
42. The appeal is allowed.
43. The accused-appellant Smt. Sohbatti is in jail. She shall be released from jail forthwith.
44. The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
45. The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
Order Date :- 24.2.2020
Brijesh (Deepak Verma,J.) (Sunita Agarwal,J.)